Mace v. M&T Bank, 2:20-cv-591-JLB-NPM

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtJOHN L. BADALAMENTI, United States District Judge.
PartiesKENNETH MACE, Plaintiff, v. M&T BANK, Defendant.
Docket Number2:20-cv-591-JLB-NPM
Decision Date20 December 2021

KENNETH MACE, Plaintiff,

M&T BANK, Defendant.

No. 2:20-cv-591-JLB-NPM

United States District Court, M.D. Florida, Fort Myers Division

December 20, 2021


JOHN L. BADALAMENTI, United States District Judge.

Defendant M&T Bank (“M&T”) moves for summary judgment on Plaintiff Kenneth Mace's negligence and unjust enrichment claims. (Doc. 39.) After careful review of the record, the parties' briefs, and viewing the facts in the light most favorable to Mr. Mace, M&T's motion for summary judgment is GRANTED.


In 2006, Mr. Mace signed a promissory note in the amount of $480, 000 in favor of M&T's predecessor. (Doc. 42 at 13, 106.)[1] In connection with the note, Mr.


Mace signed a mortgage encumbering real property he owned. (Id. at 14-15, 109.) He began leasing the property to various third party tenants prior to 2013. (Id. at 28, 33.) Following Mr. Mace's purported default on the note and mortgage, M&T initiated a series of unsuccessful foreclosure actions. (Doc. 4 at 2-3, ¶¶ 6-16.)

In 2015, M&T initiated a foreclosure action against Mr. Mace styled as M&T Bank v. Mace, Lee County Case No. 15-CA-50450. (Id. at 3, ¶ 17.) In 2016, M&T obtained a final judgment in the action, subsequently purchased the property at a foreclosure sale, and became the record title owner of the property. (Id. at 3-4, ¶¶ 18-22.) In March 2020, the Second District Court of Appeal reversed the final judgment, and in April and May 2020 the trial court vacated the final judgment, the foreclosure sale, and the certificate of title to M&T. (Id. at 4, ¶¶ 24-26.)

Prior to receiving its certificate of title and through March 2020, M&T used multiple vendors to inspect and ensure proper maintenance of the property. (Doc. 39-2 at 20, 52-53.) Between July 2016 and May 2019, M&T's efforts to maintain and preserve the property included rekeying the property, documenting the property condition, beginning maintenance for damaged or deteriorated items, grass cuts, and exterior maintenance. (Id. at 34-35.) M&T also removed debris scattered around the property, including fallen tree debris following a hurricane. (Id. at 35.) M&T also removed debris scattered around the property, including fallen tree debris following a hurricane. (Id. at 35.)


Specifically, on July 22, 2016, M&T's vendor visited the property for an inspection and determined the property to be secured and occupied. (Id. at 26-30.)[2]Because the property was occupied, M&T took no further actions at that time. (Id. at 29-30.) On August 17, 2016, M&T's vendor again inspected the property and reported the same occupied and secured condition. (Id. at 30.) On May 9, 2017, M&T first received information that the property was vacant and unsecured. (Id. at 32.) The grass was cut the next day, and M&T received information indicating the property was secured. (Id.)

On November 28, 2018, M&T's vendor spoke with Mr. Mace and subsequently entered notes “indicat[ing] that the borrower called [M&T's vendor] regarding notices placed on his property and indicating that he did not currently occupy the home but he has somebody that intends to move in.” (Id. at 43-44.)

On May 3, 2019, M&T received its next indication that the property may be unsecured. (Id. at 33.) On May 12, 2019, M&T sent a vendor to secure the property and change the locks. (Id. at 36-37.) On June 22, 2019, M&T's vendor inspected the property and determined the front locks had been changed and the property was occupied by unknown parties. (Id. at 38-39.) At some point, “the police were called and the guys had a lease agreement and it wasn't M&T on there . . . [s]o it was a fraudulent thing going on.” (Doc. 42 at 37.) M&T spoke with a sheriff's deputy who


“looked at whatever lease agreement . . . referenced by the mortgagor and when he spoke with [the vendor] and deemed the lease to be legitimate.” (Doc. 39-2 at 63.)

Based on Mr. Mace's November 28 conversation with M&T's vendor, M&T believed the occupants were tenants of Mr. Mace. (Id. at 43.) Additionally, because of the ongoing appeal challenging the final judgment, “M&T would not move to remove or evict any occupants until [M&T's] ownership of that property was confirmed.” (Id. at 44-45.)

In March 2020, shortly before ownership of the property returned to Mr. Mace, M&T received information from Lee County indicating the property had been deemed a “dangerous building.” (Id. at 58.) M&T contacted code enforcement officers to determine “the specifics related to the designation of a dangerous building and what specifically was needed to address those concerns.” (Id.) M&T “spoke with the building inspector, and he confirmed that the condition reflected what's written here, that the electrical system had been compromised, power removed from site, stolen power, no working sanitation, no smoke detectors, and unsanitary living conditions.” (Id. at 59.) M&T obtained bids for the necessary repairs, but “[b]y the time the bids were received and reviewed, the appeal had been decisioned and the property reverted back to Mr. Mace.” (Id. at 59-60.)

Mr. Mace brought suit in state court, raising four claims: negligence (Count I), unjust enrichment (Count II), conversion (Count III), and malicious prosecution (Count IV). (Doc. 4.) The action was removed to this Court based on diversity jurisdiction. (Doc. 1); 28 U.S.C. § 1332(a). The conversion and malicious


prosecution counts were dismissed. (Doc. 12 at 4 n.2; Doc. 27; Doc. 28.) On the remaining negligence and unjust enrichment counts, Mr. Mace seeks damages for the cost of repairing or replacing the property and lost rent. (Doc. 4 at 5-6.) M&T has moved for summary judgment on both counts. (Doc. 39.) Although Mr. Mace initially failed to respond to the motion, he filed a response in opposition upon the Court's order. (Docs. 43, 44.)


In diversity actions, federal courts apply state substantive law and federal procedural law. See Pussinen v. Target Corp., 731 Fed.Appx. 936, 938 (11th Cir. 2018). Because summary judgment is a procedural matter, the Federal Rules of Civil Procedure govern. Id. Rule 56 states that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If this showing is made, “the burden shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.” Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (quotation omitted).

“A fact is ‘material' if it has the potential of ‘affect[ing] the outcome' of the case.” Id. (citation omitted). “And to raise a ‘genuine' dispute, the nonmoving party must point to enough evidence that ‘a reasonable jury could return a verdict for [him].'” Id. (citation omitted). “When considering the record on summary judgment ‘the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'” Id. (citation omitted). “[A]n inference is not reasonable if it


is only a guess or a possibility, for such an inference is not based on the evidence but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1982) (internal quotation marks and citation omitted).


M&T is entitled to summary judgment on Mr. Mace's negligence and unjust enrichment claims. First, damages on both counts are unavailable because, as to the relevant conduct, M&T relied on a state court judgment and certificate of title. Second, as to negligence, Mr. Mace has not established any duty that was breached, and M&T is not liable for the intervening acts of third parties. Last, as for the unjust enrichment claim, any benefit relating to ownership of the property has been returned to Mr. Mace, and he has not identified any other benefit conferred to M&T.

I. Negligence

As M&T correctly contends, it is not liable for damages, and Mr. Mace was not injured by any breach of a duty M&T owed him.

1. Damages are unavailable.

As an initial matter, damages are unavailable under Florida law because, as to its relevant conduct, M&T relied on a state court judgment and certificate of title.[3] And as Mr. Mace acknowledges, the trial court presiding over the foreclosure action entered a final judgment of foreclosure in favor of M&T. (Doc. 4 at 3, ¶ 18.) M&T purchased the property at a foreclosure sale and became the owner in 2016.


(Id. at 3-4, ¶¶ 18-22.) Notwithstanding the pending appeal, M&T's reliance on the then-valid state court judgment constitutes a defense to Mr. Mace's claims for damages.

As Florida courts have explained:

A judgment or decree which is voidable, as being erroneous, is not a nullity. Until superseded, reversed, or vacated, it is valid, is binding everywhere, has all the attributes and consequences of a valid adjudication, [a]nd affords complete protection to one who acts in reliance upon the adjudication. Such an adjudication is conclusive, and is not subject to collateral attack.

Laird v. Vogel, 334 So.2d 650, 651 (Fla. 3d DCA 1976) (citation omitted). The facts in Laird are instructive. There, a tax deed purchaser took possession of property and removed the prior owner's personal belongings under a writ of assistance. Id. at 650. The trial court later rescinded the order for possession and returned the property to the owner who sued the purchaser and her attorney for damages. Id. at 651. In finding damages against the purchaser and attorney unavailable, the court explained that the “law demands that we uphold actions authorized by an order of the court and taken under a presumptively valid tax deed.” Id.

Mr. Mace's attempts to distinguish Laird on the basis that “M&T controlled all aspects of the dispute, made all the decisions that ultimately led to [his] damages, and was fully informed...

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